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Con man who ran jewel theft from jail asks for new chance to fight contact restrictions  

A three-judge panel appeared puzzled over how to interpret a law governing modifications to the list of people the Gambino crime family associate is allowed to communicate with.

ATLANTA (CN) — An attorney for a South Florida mafioso currently serving a 20-year prison sentence for orchestrating the theft of millions of dollars in jewelry from his Miami jail cell asked an 11th Circuit panel on Wednesday for a second chance to challenge an order which severely limits him from communicating with anyone outside his Supermax prison cell.

Currently housed at the highest security prison in the country – where he shares a wing with notorious drug kingpin Joaquin "El Chapo" Guzman – James Sabatino, an associate of the Gambino crime family, is not allowed to contact anyone inside or outside the prison except for his attorneys and his 75-year-old stepmother.

According to his attorney, Sabatino’s prison cell is outfitted with infared and night vision cameras, he is surveilled around the clock and he has fewer approved social contacts even than two-time prison escapee Guzman.

In a ruling denying Sabatino’s motion to add his stepmother’s fiancé to his approved contact list, a Florida federal judge explained that one very good reason exists to keep those restrictions in place: a phone in Sabatino’s hands has historically spelled big trouble.

While imprisoned at the Federal Detention Center in Miami in 2014, where he was awaiting trial on other charges, Sabatino used contraband phones smuggled to him by guards to defraud several luxury stores out of millions of dollars in designer goods.

Using fake email addresses to impersonate music recording industry executives, Sabatino contacted jewelers and luxury brand representatives to convince them that he was working with celebrities like Jennifer Lopez and Beyonce. He assured them that handbags, jewelry and clothing they released to his co-conspirators would be featured in music videos and later returned.

Instead, the items were sold at pawn shops or delivered to associates of the Gambino crime family. Money was deposited into Sabatino’s commissary account.

The scheme ran unabated from October 2014 until April 2017. According to a legal brief filed by his attorney, Sabatino was able to orchestrate the theft of more than $10 million worth of jewelry during a two-month period.

Sabatino’s phone was eventually uncovered during a search of his cell. He was indicted and pleaded guilty to conspiracy to violate the Racketeer Influenced and Correct Organizations (RICO) Act.

Arguing on behalf of Sabatino on Wednesday, Miami attorney Israel Encinosa reminded the panel that his client is not challenging the overall validity of the communications restrictions, which Sabatino agreed to as part of his guilty plea. Instead, Encinosa told the 11th Circuit panel that the lower court judge unfairly failed to find probable cause to prohibit communications between Sabatino and his stepmother’s fiancé specifically.

U.S. District Judge Joan Lenard ruled Sabatino “has not demonstrated that his communications no longer pose a threat.”

The panel appeared to struggle with how a law governing modifications to terms of imprisonment should be applied in this instance, where Sabatino is restricted not from contacting specific people but from contacting every person in the world except for three individuals.

“The problem in this case is that [Sabatino’s] criminal history was so severe and he’s shown such an ability to corrupt anybody he came in contact with… that it became impossible for the government to name every single person,” Assistant U.S. Attorney Scott Dion explained.

U.S. Circuit Judge Andrew Brasher, a Donald Trump appointee, raised questions about whether the extraordinary breadth of the restrictions could form the basis for a challenge.

“The statute says you can only impose this restriction as to specified persons,” Brasher said. “Isn’t the problem that the statute only allows a district court to prohibit communications to a specified person and the district court just didn’t do that?”

Ensinosa argued that a judge in a similar case in the Second Circuit, United States v. Felipe, modified communications restrictions while keeping "the spirit of the congressional intent” in the law by requiring the government to establish probable cause.

The attorney told the panel that Lenard unfairly put the burden on his client to prove that the restrictions should be modified, as opposed to requiring the government to show there was probable cause to exclude the stepmother’s fiancé from the restriction.

But U.S. Circuit Judge Charles Wilson, a Bill Clinton appointee, appeared unconvinced, explaining that if Sabatino "hasn’t given good reasons to prevent him from having communications with the stepmother’s fiancé, there’s no abuse of discretion.”

Sabatino has claimed that an FBI background check failed to uncover anything that would suggest the fiancé should be blocked from communicating with him. A brief filed with the 11th Circuit by the government called the claim “unsubstantiated.”

Dion also argued that Sabatino not only agreed to the restriction, he asked for it. “And we agreed to it, so we’re stuck here with the restriction whether or not it violates the statute,” the prosecutor said.

The text of the law says only the director of the Bureau of Prisons or a U.S. attorney can file a post-conviction motion to modify the terms of imprisonment. If the law is followed to the letter, Dion argued, Sabatino might not be able to add a newly appointed appellate or trial attorney to his communication list.

“Unambiguous text generally controls, but in rare cases the plain, unambiguous text leads to unacceptable, absurd results," Dion added. "We believe this is one of those cases.”

Brasher and U.S. Circuit Judge Adalberto Jordan seemed to share similar concerns over not just how the law should be applied, but whether it includes any guidance applicable to Sabatino’s apparently unique situation.

“The problem is, Congress may not have foreseen this sort of situation,” said Jordan, a Barack Obama appointee. “That’s why it targeted specified persons.”

The panel did not indicate when it will issue a ruling in the case.

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